Price v. Adamson

• Decision Date: 31 January 1866
• Citation: 37 Mo. 145
• Parties: JACOB A. PRICE, Respondent, v. THOMAS ADAMSON, Appellant.
• Court: Missouri Supreme Court

37 Mo. 145

JACOB A. PRICE, Respondent,

v.THOMAS ADAMSON, Appellant.

Supreme Court of Missouri.

January Term, 1866.

Appeal from Lafayette Circuit Court.

De Motte, for appellant.

I. The judgment of the court is in contravention of a public statute, and is void.

1. To sustain the proposition that the judgment is contrary to law, reference is made to the ordinance of the Constitutional Convention of this State, commonly known as the vacating ordinance, passed March 17, 1865. By this ordinance the office of the sheriff of Lafayette county was vacated on the 1st day of May, 1865. Sec. 1, p. 1310, R. C. 1855, provides that all officers at the expiration of their term of office, or when their offices are vacated, shall turn over all books and papers, &c., to their successors. Sec. 1, Art. 3, p. 76, Acts 1864, provides that the sheriff shall be collector from the first day of the month next succeeding his election as sheriff. Price was elected in November, 1864; consequently no other person could be collector for 1865 while he remained sheriff. In other words, no person but the then sheriff could be by law the collector for 1865. It is plain, then, from the provisions cited, and from the whole tenor and effect of the revenue laws of the State, that the sheriff's and collector's office is one and the same, and when the office of sheriff is declared vacated, the office of collector is declared vacated. It would be doing violence to the plain intent and meaning and legal effect of the vacating ordinance to say that it only incapacitated an officer to perform one-half of his official duties, when it declared his office vacated.

2. The facts found by the court could not warrant the judgment of the court below. These facts, though true (and appellant does not dispute them,) do not warrant the court in pronouncing judgment that the respondent was entitled to exercise a part of the functions of his office four months after his office had been declared vacant by competent authority.

II. The facts found by the court do not sustain the judgment.

1. The judgment of the court below is a final decision or judgment “in a civil cause.” (R. C. 1855, § 9, p. 1287.)

2. This cause is now in this court in accordance with provisions 13 & 19, p. 1288, R. C. 1855. If the sections referred to are not designed to allow erroneous judgments to be appealed and passed upon by this court when the necessary steps have not been taken in term time in the eourt below, they are seemingly without meaning.

3. The case of Howard v. The State only decides that a collector cannot, by resigning, relieve himself and his securities from liability on his bond. It does not decide that the people in convention assembled cannot declare an office vacated. The statute under which this decision was made is materially different from that of the present.

Ryland and Green, for respondent.

I. The proceeding is not a suit and was not embraced in the genera statutory provisions authorizing appeals to this court, and no provision is made by the statute under which the proceedings were had providing for an appeal, nor is the judge before whom such a citation is heard required to preserve any record of the proceedings, which may be heard at chambers. (R. C. 1855, p. 1311, §§ 8 & 9.)

II. The evidence in the case is not before this court by bill of exceptions, and there is nothing in the record showing that the appellant Thomas Adamson was at the time sheriff of Fafayette county, or that he had ever been appointed or qualified as sheriff or collector for said county, or had any right whatever to the tax book for the year 1865.

III. To entitle the party to the benefit of objections to any of the rulings and findings of the court below, it should appear upon the record that the same objections were made in that court. (St. bt. Thames v. Erskine, 7 Mo. 213; Long v. Story, 13 Mo. 4; Mehl v. Waldorf, 35 Mo. 466.)

IV. Where a verdict is rendered and no motion is made to set it aside, the court will affirm the judgment of the court below. (Higgins v. Breen, 9 Mo. 493; Watson v. Pierce, 11 Mo. 358; Fugate et al. v. Muir, 9 Mo. 351; Richard v. White, 11 Mo. 623.)

V. There is no error in the judgment of the Circuit Court. The collector of the revenue for any given year is an entirety, and the collector having received and receipted for the tax book, and entered upon the collection before going out of office, can only release himself and securities by collecting and paying over the taxes for that year. (Howard v. The State, 8 Mo. 361.)

HOLMES, Judge, delivered the opinion of the court.

This proceeding arose under the act concerning the recovery of public records (R. C. 1855, p. 1310), the first section of which provides that if any civil officer, having any record, books, or papers, appertaining to any public office, shall resign, or his office be vacated, he shall deliver to his successor all such records and papers. It appears that the respondent Price was elected sheriff of the county of Lafayette, in November, 1864, and was duly qualified, and entered upon the duties of his office, both as sheriff and ex officio collector, and that on the 25th day of April, 1865, he received and receipted for the tax books of Lafayette county for the year 1865, as such collector. On the 17th day of March, 1865 the people of the State of Missouri, in Convention assembled, by an ordinance of that date, had vacated certain civil offices, among which were those of all the sheriffs in the State, and ordained that the same should be filled for the remainder of their respective terms by appointment of the Governor.

It appears by the record that on the 7th day of August, 1865, the respondent Price made application to the Circuit Court of Lafayette county for a citation to be issued against Thomas Adamson, sheriff of the county, the appellant here, upon an affidavit, which stated the fact of the election and qualification of the respondent as sheriff and ex officio collector of said county, and that he entered upon the duties of the office, and received the fees and emoluments thereof, and the possession of the books and papers appertaining thereto, until the expiration of his said term of two years; that since the adoption and going into effect of the new Constitution of the State, he had subscribed, sworn to, and filed with the county clerk. the oath prescribed by the Constitution. The affidavit further stated that one Thomas Adamson procured the issuing of a warrant by one of the judges of the Supreme Court, under the statute in such cases made and provided, to take from the custody and possession of the affiant the books and papers belonging to his said office of sheriff, and to procure them to be delivered to the said Thomas Adamson; by the execution of which said warrant, great damages and injury would be done and accrue to the affiant, by depriving him of the books and papers pertaining to said office; wherefore he prayed for a citation to be issued, requiring said Thomas Adamson to appear before the court on a day to be named, that his right in the premises might be determined. And afterwards, on the 23d day of August, the said Price appeared and waived all matters in his said affidavit, except as to his right to the tax book of 1865, and the said Adamson came and waived the issuing of a citation, and asked the court to decide whether he or the said Price was entitled to the tax books of said county for the year 1865.

It further appears that, “the court, after hearing the allegations and proofs, finds the facts as follows: That said Price was, at the time of receiving said tax books, on the 25th day of April, 1865, the legal collector of Lafayette county, Mo., and as such receipted for the tax books of 1865, as before stated, and thereby bound himself and his securities for the same. It is therefore adjudged by the court that the said Price is entitled to the custody and collection of the same, and that he and his securities are alone responsible for it.”

From this judgment Adamson takes an appeal to this court. There was no motion for a new trial or an arrest of judgment, and the only questions that can be noticed, are those arising upon the face of the record, being such only as are raised by an appeal or writ of error. The proceeding was had under the eighth section of the act concerning public records, which provides that any person aggrieved by any such warrant (as that provided for in the fifth section, commanding the seizure of all records, books, and papers, appertaining to any public office, and the delivery of them to the proper officer, to be named in such warrant), may apply to any judge of the supreme or Circuit Court, who, upon affidavit of the applicant that injustice has been done by such warrant, shall issue a citation to all persons interested, commanding them to appear before him at a time and place named in the citation. And by the sixth section of the act it is further provided that the judge shall proceed in a summary manner and determine [the proceeding] according to right and justice. This act makes no provision for an appeal in such case. It seems to contemplate a proceeding before a judge at chambers, or in vacation, and not before a court. However this may be, the Circuit Court took jurisdiction of this case, and proceeded to pronounce judgment, finally concluding the rights of the parties in the premises. The 9th section of the “Act concerning practice in civil cases” provides that any person aggrieved by any final judgment of any Circuit Court of auy civil case, may make his appeal to the Supreme Court (R. C. 1855, p. 1287), and this appeal was taken under the same act (§§ 13, 14, & 19), and there can be no doubt that this was a final judgment, a decision of a Circuit Court in a civil case, from which an appeal will lie.

The court below, as well as this court, is bound to take judicial notice of the Constitution, ordinances, and statutes of the State; and the facts...